Disorderly Conduct, Harassment, and Assault charges are becoming more and more common because many different “allegations or facts” can sustain a prima facie charge. These charges can arise from a simple neighborly dispute, to unwanted phone calls or emails, to a bar fight.
In many instances it may not have been the intent of the individual charged with the offense to cause any harm. There are many cases where a person charged with one of these offenses simply reacted to a threatening or hostile situation.
However there are also many cases where emotions, intoxication, or an intimate relationship motivate a person to act in such a way that will support a charge of harassment and in more severe cases assault.
As with most other penal law charges, harassment and assault vary in degree. The more severe the conduct and the more serious the damage caused will dictate the level of the offense.
The lowest level offense of these kinds is disorderly conduct. Disorderly conduct is defined under New York Penal Law Section 240.20. A person is guilty of disorderly conduct when with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof: (1) engages in fighting or in violent, tumultuous or threatening behavior, or (2) He makes unreasonable noise, or (3) In a public place, he uses abusive or obscene language, or makes an obscene gesture, or (4) without lawful authority, he disturbs any lawful assembly or meeting of persons, or he obstructs vehicular or pedestrian traffic, or (6) he congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse, or (7) he creates a hazardous or physically offensive condition by any act which serves no legitimate purpose.
There are so many possible scenarios that can sustain a charge of disorderly conduct. Police officers really don’t need much to sustain such a charge. It is typical that if an individual is uncooperative with a police officer that in addition to other charges a charge of disorderly conduct is filed. Given the variety of situations that would support a disorderly conduct charge the fact that it is only a violation minimizes the effect it can have on a person.
Harassment occurs in either the first degree or second degree. Harassment in the first degree is a class “B” misdemeanor which carries a potential sentence of up to 90 days incarceration whereas Harassment in the second degree is a violation carrying a possible sentence of up to 15 days in jail.
A person is guilty of Harassment in the first degree when he or she intentionally and repeatedly harasses another person by following such person in or about a public place or places or by engaging in a course of conduct or by repeatedly committing acts which places such person in reasonable fear of physical injury.
A person is guilty of Harassment in the second degree when with intent to harass, annoy or alarm another person he or she (1) strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts to threaten to do the same, or (2) he or she follows a person in or about a public place or places, or (3) he or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.
Aggravated Harassment is also another charge of degree. It occurs in either the first or second degrees. Aggravated Harassment has become much more prevalent because of the wide and common use of texting, mobile devices, and social media.
Aggravated harassment in the second degree occurs when a person with intent to harass, annoy, threaten or alarm another person, he or she (1) either communicates with a person, anonymously or otherwise by telephone, or by telegraph, mail or any other form of written communication in a manner likely to cause annoyance or alarm or causes a communication to be initiated by mechanical or electronic means or otherwise with a person, anonymously or otherwise by telephone, or by telegraph, mail or any other form of written communication, in a matter likely to cause annoyance or alarm or (2) makes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication, or (3) Strikes, shoves, kicks, or otherwise subjects another person to physical contact, or attempts or threatens to do the same because of a belief or perception regarding such person’s race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation, regardless of whether the belief or perception is correct, or (4) Strikes, shoves, kicks or otherwise subjects another person to physical contact thereby causing physical injury to such person or to a family or household member of such person as defined in section 530.11 of the criminal procedure law.
Aggravated harassment in the first degree occurs when with intent to harass, annoy, threaten or alarm another person, because of a belief or perception regarding such person’s race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation, regardless of whether the belief or perception is correct, he or she: (1) Damages premises primarily used for religious purposes, or acquired pursuant to section six of the religious corporation law and maintained for purposes of religious instruction, and the damage to the premises exceeds fifty dollars; or Etches, paints, draws upon or otherwise places a swastika, commonly exhibited as the emblem of Nazi Germany, on any building or other real property, public or private, owned by any person, firm or corporation or any public agency or instrumentality, without express permission of the owner or operator of such building or real property, or sets on fire a cross in public view; or Etches, paints, draws upon or otherwise places or displays a noose, commonly exhibited as a symbol of racism and intimidation, on any building or other real property, public or private, owned by any person, firm or corporation or any public agency or instrumentality, without express permission of the owner or operator of such building or real property.
Assault like Harassment charges vary be degree and are determined by the act of the person charged, the resulting injury, and sometimes where the act occurred, such as a school or place of employment. The highest such offense is Assault in the 1st degree which is a very serious charge categorized as a class “B” felony. Assault in the 2nd degree is a class “D” felony and Assault in the 3rd degree is a class “A” misdemeanor.
While Assault in the 1st and 2nd degrees usually are the result of intentional conduct and result in serious injury, Assault in the 3rd degree has a lower threshold standard and can occur with a minimal injury or even just “substantial pain”.
Many Assault charges may have a restitution component to cover the complainant’s medical bills which can help obtain a better disposition for a client through plea negotiations. Most Assault cases also end with an order of protection which may be either a complete stay away order of protection or a non-offense order of protection.
Unfortunately there are many times when the police file charges based on facts that cannot support harassment or assault charges or they charge a higher count which cannot be sustained. Therefore there are plenty of these types of cases that can be successfully defended for a variety of reasons such as the charges being facially insufficient, a complainant not wishing to pursue the charges, or lack of evidence.
Attorney Jason Henskee has and continues to handle numerous Disorderly Conduct, Harassment, Aggravated Harassment, and Assault charges in both Erie and Wyoming counties.
Attorney Jason Henskee is well versed in both the statutory and case law that dictates these areas of law. Because of the all encompassing nature of these types of charges it is important to have an attorney who is familiar with these types of offenses and can effectively analyze, assess, and defend these serious types of crimes.